Non-Corrigé
Uncorrected
CR 2008/13
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Friday 30 May 2008, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le vendredi 30 mai 2008, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide
(Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieigtgins
Vice-Prsi-Kntasawneh
Ranjevaudges
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc Vukas
Kre ća
Couevrisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Sjoteiskov,
Vukas .
Kre ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Republic of Croatia is represented by:
H.E. Mr. Ivan Šimonović, Ambassador, Professor of Law at the University of Zagreb Law Faculty,
as Agent;
H.E. Ms Andreja Metelko-Zgombić, Ambassador, Head of International Law Service, Ministry of
Foreign Affairs and European Integration,
Ms Maja Seršić, Professor of Law at the University of Zagreb Law Faculty,
H.E. Mr. Frane Krnić, Ambassador of the Republic of Croatia to the Kingdom of the Netherlands,
Cso-Agents;
Mr. James Crawford, S.C., Whewell Professor of In ternational Law, University of Cambridge, and
Barrister, Matrix Chambers,
Mr.PhilippeSands, Q.C., Professor of Law, Univ ersity College London, and Barrister, Matrix
Chambers,
as Counsel and Advocates;
Mr. Mirjan Damaska, Sterling Professor of Law, Yale Law School,
Ms Anjolie Singh, Member of the Indian Bar,
as Counsel;
Mr. Ivan Salopek, Third Secretary of the Embassy of the Republic of Croatia in the Kingdom of the
Netherlands,
MsJanaŠpero, Ministry of Justice, Directorat e for Co-operation with International Criminal
Courts,
as Advisers.
The Government of the Republic of Serbia is represented by:
Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands,
Cso-Agent; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
S. Exc. M. Ivan Šimonović, ambassadeur, professeur de droit à la faculté de droit de l’Université de
Zagreb,
comme agent ;
S. Exc. Mme Andreja Metelko-Zgombi ć, ambassadeur, chef du service de droit international du
ministère des affaires étrangères et de l’intégration européenne,
Mme Maja Seršić, professeur de droit à la faculté de droit de l’Université de Zagreb,
S. Exc. M. Frane Krni ć, ambassadeur de la République de Croatie auprès du Royaume des
Pays-Bas,
comme coagents ;
M. James Crawford, S.C., professeur de droit inte rnational, titulaire de la chaire Whewell à
l’Université de Cambridge, avocat, Matrix Chambers,
M. Philippe Sands, Q.C., professeur de droit au Un iversity College de Londres, avocat, Matrix
Chambers,
comme conseils et avocats ;
M. Mirjan Damaska, professeur de droit, titulaire de la chaire Sterling, Yale Law School,
Mme Anjolie Singh, membre du barreau indien,
comme conseils ;
M. Ivan Salopek, troisième secrétaire à l’ambassade de Croatie aux Pays-Bas,
Mme Jana Špero, direction de la coopération avec la Cour pénale internationale au ministère de la
justice,
comme conseillers.
Le Gouvernement de la République de Serbie est représenté par :
M. Tibor Varady, S.J.D. (Harvard), professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
comme agent ;
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas,
comme coagent ; - 6 -
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Director
of the Walther-Schücking Institute,
Mr. Vladimir Djeri ć, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć and Bogdanovi ć,
Belgrade, President of the International Law Association of Serbia,
as Counsel and Advocates;
H.E. Mr. Radoslav Stojanović, S.J.D., Ambassador of the Republic of Serbia to the Kingdom of the
Netherlands, Professor at the Belgrade University School of Law,
Ms Sanja Milinković, LL.M., Ambassador, Head of the International Legal Service of the Ministry
of Foreign Affairs of the Republic of Serbia,
Mr. Vladimir Cvetković, First Secretary of the Embassy of the Republic of Serbia in the Kingdom
of the Netherlands,
Ms Jelena Jolić, M.Sc. (London School of Economics and Political Science),
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Svetislav Rabrenović, LL.M. (Michigan),
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrković, LL.B.,
as Advisers. - 7 -
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,
M. Vladimir Djeri ć, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie,
comme conseils et avocats ;
S. Exc. M. Radoslav Stojanović, S.J.D., ambassadeur de la République de Serbie auprès du
Royaume des Pays-Bas, professeur à la faculté de droit de l’Université de Belgrade,
Mme Sanja Milinković, LL.M., ambassadeur, chef du service juridique international du ministère
des affaires étrangères de la République de Serbie,
M. Vladimir Cvetković, premier secrétaire à l’ambassade de la République de Serbie au Royaume
des Pays-Bas,
Mme Jelena Jolić, M.Sc. (London School of Economics and Political Science),
M. Igor Olujić, avocat, Belgrade,
M. Svetislav Rabrenović, LL.M. (Michigan),
M. Christian J. Tams, LL.M., Ph.D. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrković, LL.B,
comme conseillers. - 8 -
The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
second round of the oral arguments of Croatia and I now give the floor to His Excellency
Mr. Šimonović, the Agent of Croatia.
I had thought Mr. Šimonovi ć might wish to introduce the second round team but we will go
straight to Professor Sands.
Mr. SANDS:
1. Thank you very much, Madam President and Members of the Court, we note that
yesterday Serbia finally felt able to respond to th e invitation set forth in the Registrar’s letter of
6 May last. We had expected Serbia to do so on Monday, and we listened with admiration to the
results of the preparation and research that were somehow squeezed into the very short period of
time between the close of our first round, an d the opening of their second round, yesterday
morning. Be that as it may, we are of course pleas ed to be able to respond to what they did say
yesterday. We can be relatively brief in our response.
2. I will begin by addressing the application of the Genocide Convention, and the issue of
access to the Court under Article 35 (1). Pr ofessor Crawford will then deal with the Mavrommatis
point, with Article35(2) and a residual aspect of Serbia’s non-retroactivity argument. Croatia’s
Agent, Ambassador Šimonovi ć, will then briefly address Serbia’s third preliminary objection and
then set out some concluding remarks. Madam Presi dent, I think we will expect to be done within
an hour and a half, so it may be, depending on what it is your desire, that we do not need to go
beyond a coffee break.
The PRESIDENT: Yes, Professor Sands, we had assumed we would run straight through.
SANr.DS:
3. Before turning to the two issues I am to address, I would like to offer a small number of
preliminary observations.
Th4e. first concerns the political positions adopted by Croatia during the 1990s. It is well
known that Croatia, along with all the other successor States of the former SFRY, believed strongly - 9 -
that all five successor States should be treated equally. This was not a matter of political
1
expediency, as counsel for Serbia suggested T. Rather, it was a point of principle.
5. This brings me to a second preliminary observation: the consequences of your Judgment
of1996. Whatever point of principle might have inspired the political position it adopted, and
whatever its assessment of the legal situati on, Croatia was bound to take full account of the
authoritative decisions of this Court, the principa l judicial organ of the United Nations, in charting
a way forward. After 1996, Croatia could simply have buried its head in the sand and ignored your
Judgment, but of course it decided not to do th at. How can it be criticized for that? Your
1996 Judgment made a number of important legal findings: for example, that the FRY was bound
by the Genocide Convention; that Article 35 of your Statute provided no bar to the FRY’s access
to the Court; and, as you later described it, that the FRY had a sui generis relationship with the
United Nations. Croatia paid very careful atte ntion to these decisions, as it was bound to do. It
relied on them as authoritative, including during the period of careful reflection that it went through
in the steps of taking a decision on whether to initiate these proceedings. That important
decision ⎯ the initiation of proceedings ⎯ was based on advice received, and at the heart of that
advice was your 1996 Judgment. Imagine if you had decided differently ⎯ if you had decided that
you had no jurisdiction, or that access to the Court was barred under Article 35 ⎯ then, of course,
that too would have been a most significant factor as Croatia decided how to proceed. But that is
not what you decided and now Serbia says that Croatia places too great a reliance on the
2
1996 Judgment T. And it says that in some unspecified way Croatia’s previous positions should
preclude the Respondent from having access to th e Court, or should prevent the Court from
3
exercising jurisdiction T. But why? When such a court speaks ⎯ particularly the International
Court of Justice ⎯ it is entitled to the fullest respect from the Members of the United Nations, and
these Members in turn are entitled to place some reli ance, at least, on the approach which is taken
by the Court after years of consideration, careful consideration, and several rounds of written and
oral argument.
TCR 2008/12, pp. 12-13 (Varady).
TCR 2008/12, see inter alia pp. 44-46 (Zimmermann).
3
TCR 2008/12, pp. 11-13, paras 8, 12-14. - 10 -
6. The Respondent now seeks to minimize the Court’s jurisprudence. According to
ProfessorVarady, the Court’s six decisions ⎯ this impressive, long list of cases ⎯ is actually
4
reduced to just one, the 1996 Judgment T. And that case, he says, did not really address the issues
we face in this case, since the 1996 Judgment, as put it, did not consider the qualification of the
5
FRY’s 1992 declaration and its accompanying Note TFPTWith the greatest respect, that is not correct:
the 1992 declaration and the Note were cited in all of the decisions in the Bosnia and Herzegovina
case. We simply do not see how it can be argued that they were not relevant legal considerations
on which the Court relied to reach its conclu sion that the FRY was bound by the Genocide
Convention. Indeed, the FRY itself recognized that ⎯ albeit implicitly ⎯ in a diplomatic Note
that it communicated to Croatia on 19February 1997, after your Judgment. That Note stated that
the 1996 Judgment “found that the Federal Republic of Yugoslavia is a Contracting Party to the
Convention on the Prevention and Punishment of the Crime of Genocide, although it has not
6
deposited any act on succession or accession to this Convention” T.PT
7. Which brings me to our third preliminary observation: we could not help but notice the
nature of so many of Serbia’s arguments, whic h persist in placing form over substance. The
7
1992declaration cannot be relied upon, it is said, because it lacked certain formal prerequisites TPT
That argument is not new, and it has already been rejected. The formal modalities for the FRY’s
succession to the Genocide Convention, it is said, have not been met. That too is an argument that
has already been made, and it too has already been rejected. The formal requirements of Article 35
of your Statute have not been met, for example in relation to membership of the United Nations.
Again, form over substance. Again, rejected. Serbia is nothing if not persistent. Yet it proceeds as
though international law is merely a set of legal cat egories into which the conduct of States is to be
slotted and then assessed. It is not.
TCR 2008/12, p. 63, para. 15 (Varady).
TIbid., para. 16.
6
TAdditional documents submitted to the Court prior to the opening of oral submissions.
7
TCR 2008/12, pp. 38-39, paras. 32, 34 (Zimmermann). - 11 -
Genocide Convention
8. So, I turn now to the Genocide Convention, and the question of its application. This was
addressed by Professor Zimmermann, and I hope he w ill forgive me if I distil his presentation into
what we saw as its three component elements.
T 9. The first question he addressed wa s this: was the FRY bound by the Genocide
8
Convention as at 2July1999? He says it was not TPTTAnd he criticizes us for having failed to
provide clarity as to the basis upon which we have argued for an opposite conclusion. It might be
said that on this occasion our crystal was cloudy, not clear. Croatia finds that surprising, since we
thought we had been rather consistent in our appr oach. In the Application of 2 July 1999, Croatia
based its arguments on succession on the general pr inciples and rules of international law and on
Tuesday, I reiterated that position on behalf of Cr oatia, and we provided authorities in support of
that claim. As an alternative basis, of c ourse, Croatia can rely on the FRY’s declaration
of 27 April 1992, as the Court appears to have done in its 1996 Judgment: T
“That Republic signed the Genocid e Convention on 11December 1948 and
deposited its instrument of ratification, without reservation, on 29 August 1950. At the
time of the proclamation of the Federal Re public of Yugoslavia, on 27April 1992, a
forma1 declaration was adopted on its behalf to the effect that:
‘The Federal Republic of Yugoslavia, continuing the State, international
legal and political personality of the So cialist Federal Republic of Yugoslavia,
shall strictly abide by al1 the commitme nts that the Socialist Federal Republic
of Yugoslavia assumed internationally.’
T This intention thus expressed by Yugoslavia to remain bound by the
international treaties to which the former Yugoslavia was party was confirmed in an
officia1 Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the
United Nations, addressed to the Secretary-General .” (Application of the Convention
on the Prevention and Punishment of the Cr ime of Genocide, Preliminary Objections,
Judgment, I. C. J. Reports 1996 (II), p. 610, para. 17.)
Now Serbia says that Croatia cannot invoke the declaration since it never placed reliance on the
Note. With respect, that is not right and it is ⎯ once again ⎯ a reflection of Serbia’s excessive
formalism. When Croatia invoked the Court’s Judg ment of 1996, what was it doing if not relying
on the FRY’s declaration?
10. Professor Zimmermann is an advocate with a fondness for legal categories. For him, the
law is no more than a series of technical issues, in which facts are applied to categories, which they
TCR 2008/12, p. 40, para. 36. - 12 -
9
fit or do not fit and from which consequences then do or do not flow TPPT Would that the world of
international law should be like this, but it is not. We, of course, could take the bait and engage in
an elaborate academic discourse on the merits and demerits of various theories of succession. On
what basis precisely did the FRY’s succession occur? ProfessorZimmermann asked TPFPT On what
particular day did it occur? he asked. We were insuffici ently clear as to our methodology, he said.
Well, we agree that methodology can be important, but not in this room, not for this case and not
on this issue. These are interesting academic points he has made, but they are only that: academic
points. And if we were to engage in academic argument, we should hope to do so with a greater
care than did ProfessorZimmermann when it came to authorities and inconsistent arguments.
Yesterday, for example, he told the Court th at Article34 of the Vienna Convention on the
11
Succession of States with Regard to Treaties di d not reflect customary international law TPFPand that
a majority of States did not accept it TPF. He seems to have forgotten what he himself has written as
an authority on this subject. His own book provides that the Article34 rule reflects a principle
which, in relation to the complete dismemberment of a State, which is the situation for the former
13
SFRY ⎯ and I quote his words ⎯ “had already in 1978 been strongly rooted in State practice” TPFPT
11. The truth is that with all these academic arguments, Serbia’s argument this week faces
one giant, insurmountable hurdle ⎯ the Mount Everest of hurdles, one might call it ⎯ that it did
not even begin to grapple with and it is this: you, the Court, have ruled that the FRY was bound by
the Convention from the beginning of the conflic t between Bosnia and He rzegovina and the FRY
on no less than six occasions ⎯ in 1993 (twice), in 1996, in 1999, in 2003 and again in 2007.
12. You did not change course in your 2004: you ruled simply that you did not have to
decide the point ( Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary
Objections, Judgment, I.C.J. Reports 2004, , pp. 313-314, paras. 87-88). If the Convention bound
the FRY in its relations with Bosnia and Herzegovina in that period, it must have bound the FRY in
9
TCR 2008/12, p. 32, para. 7 and p. 33, para. 10.
TPCR 2008/12, p. 31.
11
TPCR 2008/12, p. 34, para. 16.
12
TPCR 2008/12, p. 34, para. 17.
TPA. Zimmermann, Habilitationsschrift, Staatennachfolge in völkerrechtliche Verträge: Zugleich ein Beitrag zu
den Möglichkeiten und Grenzen völkerrechtlicher Kodifikation (Springer, 2000), p.860 cited in Bosnia, Judgment of
26 February 2007, separate opinion of Judge Tomka, p. 15. - 13 -
its relations with Croatia over exactly the same period. Serbia seems to have no answer to that.
Nothing that was legally material changed between March 1993 and July 1999. Counsel for Serbia
identified no relevant change ⎯ nothing ⎯ during that period. The legal situation on 2 July 1999
was exactly as it was on 20 March 1993. Fifteen years after you first ruled that the FRY was bound
by the Convention, Serbia asks you ⎯ once again ⎯ to change course. The true target of this
litigation is absolutely clear to us.
13. The Court’s 1996 Judgment on the contin uing applicability of the Genocide Convention
was reasonable, it was pragmatic and it was right. Much as Professor Zimmermann might wish us
to inhabit a world in which each State sets out, w ith absolute precision, the basis for each of its
actions ⎯ such as the timing and the methodology of its succession to certain treaty obligations ⎯
the category approach to international law, as it might be called ⎯ the reality in life is different, as
all of us in this room know. The infinite wisdom of international law is its flexibility, its ability to
accommodate new and unforeseen circumstances whilst maintaining its coherence and strict
adherence to principle. States are pragmatic, the United Nations is pragmatic, as it was during the
1990s, this Court has been pragmatic, the system of international law is pragmatic. Again, Serbia
puts form over substance. The substance in this case was the FRY’s attitude ⎯ no more, no less ⎯
and that attitude was to be bound by the Conven tion. Why the FRY had that attitude is not a
juridically significant factor.
14. Professor Zimmermann mentioned the more recent Montenegrin experience. It may well
be that when the time came for Montenegro to emerge into independence, the United Nations
Treaty Secretariat had learnt from experience and en couraged Montenegro to issue statements with
some greater degree of precision. But what Mont enegro may have done in 2006 cannot have legal
consequences for the FRY’s succession in the early 1990s, any more than political decisions taken
in late 2000 can retroactively affect the legal situation that pertained on 2 July 1999.
15. In sum, there can be no doubt that the Genocide Convention was binding on the FRY on
2 July 1999.
16. The second question that arises from Professor Zimmermann’s argument is this: was the
FRY bound by ArticleIX of the Genocide Conventi on as at the critical date? That should be a
fairly straightforward question to answer. Ju st as you have decided on six occasions that the - 14 -
Convention was binding on that date, so you have held that ArticleIX vested the Court with
jurisdiction over the FRY when Bosnia and Herzegovi na filed its Application. Serbia now invites
you to overturn that line of decision. Serbia says that its 1992 declaration cannot be relied on ⎯
for formal reasons ⎯ and there is no automatic succession to compromissory clauses. What is the
authority for that? Professor Zimmermann did not mention any by name. He referred the Court to
the Respondent’s Written Statemen t of preliminary objections TP. We dutifully went off to have a
look at those authorities. There are very few of them; none are on point. I will give you a couple
of examples: one authority was said to be the views of the United Nations Legal Counsel in 1974,
15
as reported by Professor Schachter TP. But that objection to succession concerned political treaties,
such as treaties of pacific settlement, and not tr eaties like the Genocide Convention, which falls
within the category of “essentially non-political agreement... intended to have universal
application”. The second authority on which the Respondent relies was the 1974 Yearbook of the
16
International Law Commission TPF, which suggested that it would not be fair to impose obligations
by way of succession on “newly independent States”. This was understandable in the context of
decolonization, but we are not here dealing with such a situation and the FRY was not a newly
independent State. So that, too, does not assist. Indeed, none of the small number of authorities
referred to concerns a treaty such as the Genocide Convention. When one goes to inspect closely,
Serbia’s cupboard of authorities is bare.
17. In conclusion: there can be no doubt that on 2July1999 the FRY was bound by
Article IX of the Genocide Convention. To hold otherwise would reverse 15 years of jurisprudence
and call into question the basis for the Court’ s decisions in the case brought by Bosnia and
Herzegovina.
18. Which brings us to the third question: assuming that the FRY was bound by the
Convention, including its ArticleIX, does the Co urt have jurisdiction in relation to events
occurring before 27 April 1992, which is the moment , according to Serbia, that the FRY came into
being? Serbia says no, because to do so would give rise to a retroactive application of the
TPCR 2008/12, p. 36.
TPFRY, Preliminary Objections, Ann. 38.
16
TPFRY, Preliminary Objections, Ann. 24. - 15 -
Convention to a time before the FRY existed as a State. I am not now going to repeat the
arguments we made to respond to Serbia’s argumen t on this issue. That argument we say with the
greatest respect was unattractive on Tuesday, and it is unattractive today on Friday.
19. We are castigated for calling it unattractive. But it is unattractive because it creates so
many problems and because it undermines the whole system of human rights protection that the
world has strived with great difficulty to put in place over the last 60years. It also has the
weakness of being completely in consistent with Serb ia’s own perception of its status and the
circumstances of its emergence. For exampl e, in December1991, the European Community
invited the six Yugoslav Republics to respond to an invitation extended in an EC declaration on
Guidelines on the Recognition of new States in Eastern Europe and in the Soviet Union. On
23December1991 Serbia declined, responding that it acquired internationally recognized
statehood as early as the Berlin Congress of 1878 and was not interested in secession TP. So Serbia
certainly saw itself as having some degree of intern ational personality even before 1992. Serbia’s
approach as argued before the Court this week, inevitably leads to a time gap in the application and
enforcement of the Convention. Serbia has fa iled to explain how such a time gap would be
avoided, in the period between the dissolution of the SFRY (which started when two constituent
Republics proclaimed independence) and the emer gence into independence of the FRY, and it
seems unable to provide an answer to that absolu tely crucial point. By the end of November 1991,
the Badinter Commission was able to conclude that the SFRY was in the process of dissolution,
and conversely the emergence of the FRY ⎯ under the leadership of Milosevic and making use of
the JNA, amongst many other statal entities ⎯ was in a state of emergence. ProfessorCrawford
will return to this point in due course, but for the present it is su fficient to note that on Serbia’s
approach that vital period would be one during which the enforceable writ of the Genocide
Convention would have ceased to run. That cannot be right, MadamPresident, for the very legal
reasons identified by the Court in its 1996 Judgment.
20. What argument does Serbia have for this claim? It relies on a very particular reading of
paragraph34 of your 1996Judgmen t. That paragraph, says Serbia, makes clear that the Court’s
17
TRoland Rich (1993): “ Recognition of States: The Collapse of Yugoslavia and the Soviet Union ”, 4 EJIL, p. 47. - 16 -
jurisdiction ratione temporis extends only prospectively from 27 April 1992. But it does nothing of
the sort. Paragraph34 has to be read against the background of the Application made by Bosnia
and Herzegovina, and the arguments, includi ng the Memorial dated 15April1994, and the
verbatim records of the oral arguments heard in this very courtroom from February to May2006.
Those documents make it clear that the Court pro ceeded on the basis that it had jurisdiction “with
regard to the relevant facts which have occurred since the be ginning of the conflict which took
place in Bosnia and Herzegovina”. Now it is true, the Court did not specify the precise date of that
conflict, but it is clear from the pleadings that both parties treated the conflict as stretching over a
period both before and after 27 April 1992. A few examples confirm that the parties to proceedings
before this Court adopted the same approach as the ICTY, which has long treated the conflict with
Bosnia and Herzegovina and the conflict with Croatia as having begun in 1991, well before the
FRY’s declaration of 27 April 1992. Bosnia a nd Herzegovina’s Application of 20 March 1993 for
example, refers to numerous acts that occurred well before that date: for example, an attack by
18
Serb forces and the blocking of traffic in Bosnia and Herzegovina on 3March1992 TPF; for
example, widespread attacks throughout Bosnia and Herzegovina on 4 and 5April1992 TPFPT for
20
example, the capture by Serb forces of Z vornik in Eastern Bosnia, on 10April1992 TPFPT for
21
example, the intensification of attacks on 22April1992 TPF. Each of these, and many more, well
before the jurisdictional cut off date now claimed by Serbia.
21. Bosnia’s Memorial in that case continued in the same vein. It described an attack at the
beginning of April 1992 in which 1,000 Muslim civilians were killed by Serb paramilitary forces in
22
Bijeljina TPFPT It describes a number of crucial flashpoints between 27March and 8April1992,
including attacks that were initiated by Arkan’s “Tigers” in the north and the east and by the JNA
units in the south, the west, and the north-west, a ll intended to secure the main points of entry into
23
Bosnia and Herzegovina TPFPT Plainly Bosnia and Herzegovina treated acts prior to 27 April 1992 as
18
TPBosnia’s Application of 20 March 1993, para. 87A.
TPIbid., para. 87B.
20
TPIbid., para. 87A.
21
TPIbid.
22
TPMemorial of Bosnia and Herzegovina, 15 April 1994, p. 30, para 2.2.2.2.
23
TPIbid., p. 72, para 2.3.5.2. - 17 -
falling within the jurisdiction of the Court. Did the FRY object to these acts, did it argue that they
fell outside the Court’s jurisdiction because they occurred retroactively before the FRY supposedly
came into existence? Apparently not.
22. What did the Court do? In paragraph 34 of the 1996 Judgment the Court expressly
rejected Yugoslavia’s argument that it could only deal with events subsequent to the different dates
on which the Convention might have become appli cable as between the parties, that includes
27April1992. It comes as no surprise, then, that the 2007Judgment also refers to events that
occurred prior to 27April1992. Nowhere in the Court’s Judgment ⎯ certainly nowhere that I
have seen ⎯ does the Court draw a line across the calendar and say: “oh, we only have jurisdiction
after 27April1992, so we’re not going to look at any facts that occurred prior to that date and
we’re not going to assess any facts that occurred prior to that date”. To the contrary. The Court
identified and assessed acts that occurred prior to th at date. You refer to decisions of the ICTY
which treat the conflict as having started in 1991 . You refer to the establishment of the Serb
Republic of Bosnia and Herzegovina (lat er Republika Srpska), on 9January1992 ( Application of
the Convention on the Prevention and Punishme nt of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), p.84, para.233). You refer to th e armed conflict that broke out in
Sarajevo at the beginning of April1992, and you described the 56,000people who had been
wounded in Sarajevo in a period that pre-dated th e Respondent’s declaration of 27April1992.
Nowhere in the Judgment, as far as we can see, do you say that in assessing whether a genocide
had occurred you are limited to facts that had occurred after 27 April 1992.
23. Madam President, Members of the Court, the retroactivity argument has no merit
whatsoever, and it is inconsistent with your pr actice. If you accede to Serbia’s arguments on the
application of the Genocide Convention, or an y part of it, you will be rejecting your own
jurisprudence across six decisions and 14years. The consequences of that do not bear thinking
about. We invite you to reject Serbia’s argument, and to do so decisively.
Article 35 (1)
24. I turn now to the Article 35, paragraph 1, issue: the question of the FRY’s membership
of the United Nations and access to the Court. It was truly striking how little Serbia had to say on - 18 -
this point. ProfessorVarady devoted just a few minutes to the argument, it is synthesized in two
24
pages of the transcript TPPT Madam President, I will follow your disposition: we will not repeat
ourselves, and limit ourselves to the one point raised by Serbia on this issue. So I can be very brief.
25. Serbia essentially limited itself to this point: Croatia, it said, is not entitled to claim that
the Respondent has access to the Court under Ar ticle35(1) because its position on this issue
changed. It changed, says Serbia, from one of opposition to the notion that as at 1999 the FRY was
a Member of the United Nations, to one of acceptance of that position: but that is the full extent of
their argument. But that misstates Croatia’s position: a willingness on the part of Croatia to accept
that the FRY had certain attributes of membership ⎯ including the right of access to the Court ⎯
is not to accept that it was a Member of the United Na tions. There is no inconsistency in Croatia’s
position, all the more so when you take into account the adoption of your 1996Judgment which,
obviously, Croatia could not ignore.
26. Madam President, this argument might have been more compelling if Serbia had actually
chosen to respond to the arguments I put forward on Tuesday. It has not. Nor, we respectfully
suggest, has it listened with sufficien t care and attention to what we did say. Croatia’s position
was, and it remains, that the FRY was not a Me mber of the United Nations between 1992 and
2000: rather, it had ⎯ as this Court described it ⎯ a sui generis relationship, one that came with
attributes of membership. What does Serbia believe is meant by the sui generis relationship? We
have absolutely no idea, for once again Serbia was silent. There was no response at all to our
submission that those attributes included a right of access to the Court. There was no response to
our submission that this conclusion followed logically from the fact that no equivalent resolution to
that adopted in relation to the General Assemb ly and Economic and Soci al Council participation
was adopted in relation to the right of access to the Court. On that point too, Serbia was silent.
Indeed, it was silent on all the points that we rais ed. It simply provided no substantive response.
Instead all we got was bald assertion: and from th is silence we say the Court should draw its own
conclusions.
24
TCR 2008/12, pp. 13-15. - 19 -
27. And yet, the special relationship between the FRY, and now Serbia, seems to persist.
25
ProfessorVarady told the Court that “everyone accepted the position asserted by Croatia” TPF. But
not quite everyone, it seems. There are still so me who believe in the special relationship.
[Plate 11 (a) on screen.] Even today, in some instan ces, the United Nations website differentiates
between the different successor States. On membership of the United Nations Security Council, for
example, in relation to Serbia it sometimes says “See Yugoslavia”, whereas in relation to Croatia,
which you will see on the next plate [new plate 11 (b) on], there is no similar connection drawn.
For your convenience, the plates showing the United Nations website may be found in your folders
at tab 11. [Plate off.]
28. And this is not just for the past. A recent decision by the Serbian Government, as
confirmed by the Parliament of the Republic of Serbia, proudly proclaims that “the Republic of
Serbia is an internationally recognized state, one of the founders and a member of the United
26
Nations, as well as one of many ot her international organizations” TPFPT And even more recently, in a
statement of 18 February 2008, the Supreme Court of Serbia reiterated that position, declaring that
the Republic of Serbia is a sovereign State a nd “one of the founders of the United Nations” TPF. The
special relationship, the sui generis situation, seems to persist even today, at least in the eyes of
certain organs of Serbia.
29. Madam President, Members of the Court, I cannot, I am afraid, provide you with more
assistance than this. On Wednesday we set out our arguments on the meaning and effect of the sui
generis relationship. It stands completely unrebutted. In our submission Article 35 (1) provides no
bar to the FRY having access to the Court on 2 July 1999, and it provides no bar today.
Conclusion
30. Madam President, Members of the Court, I can end on a note of agreement. On Monday,
Professor Varady told the Court that: “The issue of jurisdiction boils down to one question: that of
25
TPCR 2008/12, p. 14, para. 15.
TPSee: National Assembly of the Republic of Serbia, http://www.parlament.sr.gov.yu/content/lat/akta/
akta_detalji.asp?Id=470&t=Z# U(in Serbian), Government of the Republic of Serbia, http://www.srbija.sr.gov.yu/kosovo-
metohija/index.php?id=43159 (in English).
TPSee: Supreme Court of Serbia (only in Serbian), http://www.vrhovni.sud.srbija.yu/code/navigate.php?
Id=731&newsId=304&bigText=true&offset =TH - 20 -
the link between the Respondent and the Genocide Convention.” TPFHe did not recant from that on
Thursday. That succinct statement is surely righ t, and I hope we have shown that the question of
the link between the Respondent and the Convention on 2 July 1999 admits of only one conclusion.
From that conclusion all else logically flows: in particular, the rejection of Serbia’s argument on
jurisdiction under Article IX and on the Article 35 (1) access issue, as well as the safeguarding of
your consistent jurisprudence in the Bosnia case, and the legacy of that case.
31. Madam President, that concludes my pr esentation. Once again I thank you and the
Members of the Court for your very kind attention, and invite you to call Professor Crawford to the
Bar.
The PRESIDENT: Thank you, Professor Sands. I now call Professor Crawford.
Mr. CRAWFORD: Madam President, Members of the Court:
SERBIA ’S A CCESS TO THE C OURT
Introduction
1. In this presentation I will deal with aspects of all three preliminary objections.
⎯ First, on preliminary objection 1, I will respond to the arguments made yesterday on Article 35,
paragraph 2, the treaties in force provision, and on the Mavrommatis principle. In the course of
doing so I will respond to the question asked by Judge Abraham earlier this week.
⎯ Second, on preliminary objection 2, I will show that the Respondent’s argument that there is no
possibility of responsibility for conduct prior to 27 April 1992 being attributed to it must fail as
a matter of admissibility; as a matter of fact it evidently pertains to the merits.
⎯ Third, I will say something very briefly on the remaining admissibility issue raised by
preliminary objection 3.
28
TCR 2008/9, p. 34, para. 11. - 21 -
Preliminary objection 1: Jurisdiction ratione personae
(a) Article 35 (2): Treaties in force
2. Turning first to Article 35, paragraph 2, I am not going to try to repeat my very extensive
presentation the other day. I am simply going to make a series of points, in staccato fashion, in
response to what was, finally, a very able and well-prepared presentation yesterday by Mr. Djerić.
3. A minor point first: I did not say that the Article 35, paragraph 2, point was not argued in
the NATO cases: I said it was not argued by Serbia as Applicant. If it had really wanted to uphold
your jurisdiction in those cases, it should have argued Article 35, paragraph 2, but it did not. Some
of the Respondents of course did argue it. You heard the case against. The first time you heard the
case in favour was this week. The Court pointed out in paragraph93 of your Judgment ⎯ I take
the Belgian case as the illustration ⎯ that the point had been argued by the Respondents:
“The Court notes that the Applicant, in the present case, has not in fact claimed
that the Court is open to it under paragraph 2 of Article 35, but has based its right of
access to the Court solely on paragraph 1 of the Article. However, in some of the
cases concerning Legality of Use of Force , including the present one, the
Respondent... has raised the question of th e possible application of paragraph 2, in
order to contend that Serbia and Monten egro may not rely upon that text.” ( Legality
of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections ,
Judgment, I.C.J. Reports 2004, p. 315, para. 93.)
In fact the Court regarded itself as required to d eal with paragraph 2 even though it was not relied
on by the Applicant. That is rather the inversion of the normal rule that a court has to satisfy itself
of its jurisdiction. Hitherto one has not thought that the Court had to satisfy itself of its jurisdiction
when the claimant did not allege a particular ground of jurisdiction, but you chose to do it.
4. Turning to the substance of Article 35, paragraph 2, I must say that I am now unclear as to
the interpretation on which the Respondent now relies. Is it only that old treaties count, treaties in
force at the date of the Statute (in wh ich case the suggested explanation of the Upper Silesia case
will not do)? Or is it only treaties which can be described as part of the peace settlement (in which
case the Court in the NATO cases was wrong on Serbia’s account, because it recognized no such
exception)? Does Article35, paragraph2, mean the same as it did under the PCIJ Statute (in
which case the different status of this Court under the Charter is irrelevant)? Or does it have a
different meaning (in which case the travaux of the PCIJ Statute and the practice of that Court are
irrelevant)? The position was not clarified. - 22 -
5. Except on one point, Mr.Djeri ć did not attempt to follow my analysis of the travaux of
Article 35, paragraph 2. I showed on Wednesday the following:
(1) The first version of Article 35 (2), then numbered Article 32, was introduced following British
criticism that the previous version, which allowed access only through the Council, did not deal
with treaties made and to be made with the Central Powers.
(2) No one in the debate treated the problem as limited to the peace treaties already concluded.
They were explicitly treated as mere examples, both by Mr.Ricci-Busati in his repeated
comments and by Mr.Hagerup. Indeed the redr afted version of Article32 introduced by
Mr.Hagerup expressly included the phrase “for example”. You might think not very good
drafting, but clear on this point.
(3) At the time Article 35 (2) was finally adopted, the drafters had rejected a provision giving the
Court compulsory jurisdiction but were looking forward to a future general treaty of arbitration
involving the Court. For that project to work, it had to have the widest possible participation.
(4) By that stage it was clear that important States would not be, for some time if ever, parties to
the Covenant of the League. Yet it was vital th at they should be involved in the continuing
project of peaceful settlement through the Court.
(5) Access to the Court was not to be limited to League Members or to those approved by the
Council. Access through treaties in force was an alternative to access through the Council.
DMjrr..i ć asserts that there is no evidence that M.Fromageot, in responding to
MaxHuber, was talking about what is now Article35, paragraph2. I would make the following
points:
(1) There was no separate debate on Article 36, paragraph 1, as it now is, draft Article 33 as it then
was. The three draft Articles32 to 34 that I showed you on the screen on Wednesday were
introduced together and debated together.
(2) If Max Huber had wanted to talk about Article 36, paragraph 2, draft Article 33, he would have
used the phrase “treaties and conventions in fo rce”, which was the phrase used in that Article
and used now in Article36(1). But he did not ; he used the phrase “t reaties in force” which
was taken from draft Article 32 and is now the language of Article 35, paragraph 2. - 23 -
(3) MaxHuber knew a thing or two. He did not need to ask whether the phrase “treaties and
conventions in force” in what is now Article36 (2) meant treaties and conventions in force at
that time. It was blindingly obvious that it meant treaties in force from time to time. The
debate that was going on at the time concerned the peace treaties, to which non-League
Members were parties and which provided for the Court’s jurisdiction.
(4)Mr.Hagerup subsequently explained the point in precisely this way in his report to the
ThirdCommittee; it was approved by the League organs on that basis, although the
formulation “subject to special provisions contained in treaties in force” ⎯ the language as it
stood at the time of Mr. Fromageot’s answer ⎯ was finally retained.
7. I referred on Wednesday to the practice of States in the League period. There can be no
doubt that the Treaty of Lausanne when it was finally adopted in 1923 was considered a “treaty in
force” for the purposes of Article 35, paragraph 2. I cited Fachiri to that effect: Mr. Djeri ć made
no mention of either the Treaty of Lausanne or the literature concerning it. Article 44 of the Treaty
of Lausanne referred minorities disputes to the Permanent Court. Imagine if in1925 Greece had
taken a minorities dispute against Turkey to the C ourt but the Court had refused jurisdiction on the
ground that Turkey had not filed a declaration under the Council resolution of 1922! Turkey was
willing to file a special declaration for the particular case in the Lotus ⎯ though it was not filed in
advance, as the resolution required. But wh at if it had refused to go under the resolution ⎯ as one
can well imagine it might have done if the case had been brought by Greece concerning minorities
rather than France concerning a spat over Li eutenant Demons. Was the Court to refuse
jurisdiction? Of course not.
8. But it was not just the Treaty of Lausanne of1923 or the Upper Silesia Convention of
1922: many treaties were concluded with non-Leag ue Members referring matters to the Court. I
refer you to the list of treaties you will find at tab 12in your folders. I do not represent that it is
complete, although I do admit that it has taken so me time. Under headingA you will find listed
treaties with non-League Members concluded after th e conclusion of the PCIJ Statute. There are
some rather important treaties here, the interna tional legal history of the 1920s could be written
about around many of these treaties: the German-French Treaty concerning Delimitation of the
Frontier of1924, the Locarno Treaties (which Mr.Djeri ć also did not mention), a subsequent - 24 -
Arbitration Treaty between Germany and the Nether lands, many treaties of Turkey and Iceland, a
Greek-Turkish Treaty of Friendship of1930, and so on. Was the Court to turn its back on these
and on the Upper Silesia precedent? Again, of course not.
9. I would also note that from the mid-1920s there was a potential problem with departing
States, including Brazil and Costa Rica. I give under headingB just two examples of Brazilian
PCIJ treaties that stayed in force after Brazil left the League. Now Brazil presumably continued to
have access since it was listed in the Annex to the Covenant ⎯ even though it has turned its back
on the Covenant ⎯ but Germany, which left later, was not listed, and nor was CostaRica, which
left in 1925.
DMjer.i. ć referred to the discussion in the Perm anent Court in1926 in relation to the
revision of the Rules. The background to that discussion can be seen from the Minutes of the
Eighth Meeting of the same session, which is tab 13 in your folders (P.C.I.J., Series D, Addendum
to No. 2, pp. 75-77). I refer in particular to page 75. The Registrar, Hammarskjöld, later a judge,
pointed out that in the Wimbledon case, “it had been decided that the obligation in question [that is
the obligation because they were talking about the implementation of the Council resolution, the
obligation to accept the Court’s jurisdiction in ac cordance with that resolution] could only be
imposed on the applicant Party and not on the respondent”.
That is one situation. I will revert to anothe r in which there may well be a difference between the
two. The Respondent in the Wimbledon case was Germany, lacking access to the Court except
through Article35(2). Germany never made a declaration under the Council resolution, whether
as a matter of deliberate policy or not, I have not been able to find out, but the fact is that it did not.
And the reason for Hammarskjöld’s remark is obvious; if a respondent could frustrate a treaty
obligation to submit a matter to the Court by simply refusing to make a declaration under the
Security Council resolution, then the treaty w ould be nugatory. The Council resolution was for
volunteers. As I mentioned on Wednesday, Turkey in the Lotus case was persuaded to a make a
particular declaration ⎯ but what if it had refused? Was the special agreement in such a case to be
made ineffective by the unilateral act of the Responde nt? That takes us back to nineteenth century
arbitration. - 25 -
11. This is the background to the discussion at the 22nd meeting to which you were taken
yesterday by Mr.Djeri ć (P.C.I.J., SeriesD, Addendum to No. 2, pp. 104-107). The following
points should be made:
(1) Judge Anzilotti thought that Ar ticle35, paragraph2, should be limited to “agreements to be
considered as supplementary to the Treaty of Versailles”. That is a slightly curious formulation
because it should have been agreements to be considered as supplementary to the Treaty of
Versailles or the Treaty of Trianon, or the Treat y of Saint Germain etc., the Treaty of Sèvres,
which had already been concluded but had not been ratified. So the interpolation in Article 35,
paragraph2, was already a rather long, one but that is what he thought. But his actual
proposal ⎯ the proposal being debated by the Court ⎯ was neutral on the point ⎯ it simply
referred to “cases in which a declaration in acco rdance with the Council resolution is required”
(ibid., p. 105), without stipulating when.
(2) The President, Huber, noted that having regard to the Hagerup Report “it was quite possible to
arrive at the wide interpretation of Article35 adopted by the Court in the Upper Silesia case”
(ibid., p. 106). He went on to say that “whether a declaration was or was not required” should
be left to be decided if the issue arose (ibid., p. 106). And that was what was done.
(3) Manley Hudson is correct in saying that “In the revision of the Rules in 1926, the Court seems
29
to have preferred to leave open the question as to the meaning of ‘treaties in force’.” TPFPT
12. It is true that there were opinions which favoured forcing States to go through what I will
call the Council route, either through membership of the League or the adoption of a declaration
under the Council resolution. ManleyHudson himself was of that opinion ⎯ but then he was an
ardent proponent of United States membership of the League, or at least of the Statute of the Court.
Even so, his view was far from categorical:
“Is the expression ‘treaties in force’ in Article35 equivalent to the expression
‘treaties and conventions in force’ in Article 36? There can be no doubt that the latter
expression refers to the future. Is the expression in Article 35 analogous to ‘a treaty or
convention in force’ referred to in Article 37? It seems doubtful whether the latter is
to be applied in the future indefinitely. [He is talking about Article37, which was a
transitional provision.] Article35 may ha ve been [may have been] intended to
29
TPM.O. Hudson, The Permanent Court of International Justice. A Treatise (New York, Macmillan, 1934), p. 349. - 26 -
safeguard provisions in the peace treaty made with Turkey; yet the Treaty of Lausanne
was not signed until July 24, 1923 . . .” TPFPT
He saw the point. He then refers to the Wimbledon and the Upper Silesia cases, both of course
involving Germany, and to the 1926 revision of the Rules, and continues:
“If the implications of this decision [he is referring to Upper Silesia ] were
carried out, it would be possible for two St ates to escape the Council’s conditions by
entering into a treaty; indeed, if special agreements were included among treaties in
force, the Council’s resolution might never be applicable. It is clearly necessary for
some restrictive meaning to be given to this provision in Article35; it ought to be
confined to treaties relating to the liquidati on of the war, and the action taken in the
case of German Interests in Polish Upper Silesia ought not to serve as a general
precedent.” TPFPT
That is what Hudson said. He does not refer to Judge Fromageot’s opinion, to Hagerup’s report, or
to the Locarno treaties. To be fair, he was writing just before Germany withdrew from the League.
13. The following comments should be made about this influential passage in Hudson’s great
book.
(1) His view was, as he recognized, contrary to the only decided case in point, the Upper Silesia
case.
(2) It is expressed more or less de lege ferenda: “It seems doubtful . . .”; “ought not to serve as a
general precedent”.
(3) It fails to address the point that in the dr afting of Article35, paragraph2, access through the
Council and through treaties in force was thought of, and in its actual formulation was
expressed, clearly in the alternative. The powers of the Council are not expressed to override
treaties in force: they are distinct routes. I st ress that there was no equivalent to Article 103 of
the Charter in the Covenant of the League. Th e idea that a Council resolution could override a
treaty in force was not on the mental horizon of th e drafters of Article 35, paragraph 2, of the
Statute.
(4) There is no interwar opinion I have been able to find which confines Article 35, paragraph 2, to
treaties already in force in September 1921.
(5) Above all, to limit Article 35, paragraph 2, to “treaties relating to the liquidation of the war” or
to “agreements . . . considered as supplementary to the Treaty of Versailles [and the other
TPIbid.
TPIbid., p. 350. - 27 -
treaties]” is completely to rewrite the Article, and goes far beyond the legitimate use of travaux
in the interpretation of treaties. It is to substitute a reading ⎯ I have shown it is the wrong
reading ⎯ of the travaux for the language of the Article. Assuming for the sake of argument
that the phrase “treaties in force” could mean “tr eaties already in force”, then all the authorities
on the Statute of the Permanent Court are opposed to that reading, without exception, Anzilotti
and Hudson included. Moreover, as I have shown, the Article has to be rewritten already, if the
NATO decision is to be sustained: it has to mean “treaties in force in1945 which are still in
force”. It does not say that, either. Mr. Djerić did not attempt to meet that argument either.
14. Mr. Djerić did argue the catastrophe theory of interp retation: the skies will fall, he said,
as though apprehended to fall on Ch icken Little, if the Council resolution could be avoided by a
treaty. In Hudson’s words, “if special agreem ents were included among treaties in force, the
Council’s resolution might never be applicab le”. What a tragedy! Two States ⎯ they have to be
States, Article 34, paragraph 1 ⎯ agree in a legally binding treaty to resort to the Court rather than
to arbitration. Of course that agreement enta ils a commitment to be bound by the decision.
Institutional costs are for the Court to apporti on: the Council has no power to implement the
decision but it did not have that anyway. No third party is affected; there is no access to the
optional clause system–– for that you have to be a Member. One can understand the policy
argument, that it was better to force States to go the Council rout e –– that was Baron Descamps’s
view when we were trying to maximize membership in the League. But once it was clear that that
was not going to work, another strategy was a dopted–– and this is the fundamental point––
another strategy was adopted, which open ed the Court to access by treaties in force faute de mieux
in terms of universality. Baron Descamps’s view wa s clearly rejected in the drafting of Article 35,
paragraph 2, in favour of a view which supporte d access to the Central Powers, both as applicants
and respondents, in relation to trea ties concluded and to be concluded ⎯ and as a straightforward
alternative to access via the Council.
15. Madam President, Members of the Court, for all these reasons, the restrictive ⎯ I have to
say the destructive ⎯ view of Article 35, paragraph 2, should be rejected. - 28 -
(b) The Mavrommatis point
16. I turn to my second point, the Mavrommatis point. I dealt at some length with the
Mavrommatis principle on Wednesday and again will not repeat in any detail what I said. On
1November 2000 all four conditions for jurisdiction were met and, in our view, incontestably so.
They were, one: seisin; two: a basis of claim; th ree: consent to jurisdiction; four: access to the
Court. The Respondent, through ProfessorVarady, denies three of them. The second and third
come down to the question whether the Genocid e Convention was in force for the Respondent
continuously from the beginning of the conflict or not. Professor Sands has dealt with that already:
that is why it is the Respondent’s most substantia l jurisdictional objection in this context. I accept
that that objection is not suscep tible to being overcome by the Mavrommatis principle. If the
Respondent became a party to the Convention on ly on 11March2000, and irrespective of the
validity of its reservation, then the Mavrommatis principle would not have been satisfied at an
earlier date. But of course the Respondent was a party to the Genocide Convention in 1999 without
reservation, as you have already decided. And it was a party by succession to the beginning of the
conflict, stare decisis.
17. That leaves only the issue of seisin in November 2000, and it explains how desperately
ProfessorVarady yesterday argued that the Court did not have seisin of this case. It says
something about international lawyers that we can be passionate about seisin, and Professor Varady
is an international lawyer, very certainly. In other words, he said the case was wrongly entered in
the List. He thereby gaily trashes a decade of litiga tion by this State, the respondent State, imagine
the wasted costs ⎯ the 40 legal acts before the Court I listed to you the other day.
18. But as between States qualified under Article 34, paragraph 1, to appear before the Court,
an apparent title of jurisdiction is sufficient to give seisin, and this no matter how implausible the
jurisdictional basis may appear, no matter how pred ictable its eventual dismissal may be. Of
course in our case, neither of those qualifications applies. There is a strong prima facie basis of
jurisdiction under either Article35(1) or 35(2), and the dismissal of our claim on jurisdictional
grounds is not at all predictable, at least not on our side of the Bar. But that is irrelevant: there is
seisin. - 29 -
19. You rightly acted in the NATO cases on the basis that you had seisin. Once it became
clear after argument in the United States and Span ish cases that there was no basis for jurisdiction
whatever, you struck the cases out, ag ain quite rightly. But that was an exercise of
competence-competence, not a denial of it. There is no suggestion that the cases should not have
been entered in the List.
20. In the present case, it is frankly ab surd to suggest that you do not have
competence-competence, or that the Croatian Application is somehow nul et non avenu . It shows
the ridiculous extent to which the Respondent is fo rced to go in order to sustain the claim that it
was absent from the Court in the 1990s. As JudgeSchwebel remarked in Request for an
Examination of the Situation, if the Court is not seised of the case, why are you wearing gowns?
21. This position is of long standing, and go es to the root of the competence-competence
doctrine, fundamental to modern judicial se ttlement, fundamental to the Court. In the Lotus, as I
said, the Permanent Court treated itself as seised even before Turkey made its declaration under the
Council resolution. It is with respect self-evide nt that the Court was seised of this case on
1 November 2000 when on any view the Respondent had access to the Court.
22. ProfessorVarady said that the Mavrommatis principle does not apply to fundamental
issues such as access to the Court. But there is no authority for this. The peremptory requirement
is statehood, as set out in Article34, paragra ph1: all other obstacles can be overcome by
procedural steps such as compliance with Security Council resolution9(I). It is, incidentally,
rather odd to treat compliance with Security Co uncil resolution 9 (I) as a matter of capacity. Any
State can make a declaration and the declara tion gives it access unquestionably under the second
alternative in Article 35, paragraph 2. It is odd to think of a State giving itself capacity by making
a declaration that no other State can stop it from making. An incapacity I can remove by making a
unilateral declaration is a strange form of incapacity.
23. I stress that neither Professor Varady nor Mr. Djeri ć made any mention of the point that
Croatia could certainly have started this very case again on the day it filed its Memorial. Filing the
Memorial clearly amounted to an affirmation of our Application, a fundamental step in the
proceedings that must have legal significance. Assume that the bilateral FCN treaty in the
Nicaragua case had been terminated before Nicaragua filed its Memorial ⎯ it was actually - 30 -
terminated afterwards ⎯ could it have been relied on by Nicar agua after it had been terminated?
The answer must be, no. The filing of the Memorial clearly has legal significance.
24. Madam President, Members of the Court, in a way I am sorry that there is not more to
say on this point, because it is ⎯ having regard to the state of the authorities before the Court ⎯ by
a margin the simplest and mo st straightforward way of upholding your jurisdiction without
contradicting, or seeming to contradict, any earlier decision. It does not contradict the Bosnia case,
since it is an alternative path to the same destin ation, and international law recognizes alternative
paths to jurisdiction. Nor does it contradict the NATO cases: the Mavrommatis principle was
wholly inapplicable in the NATO cases, since there was no moment when all jurisdictional
requirements in that case were satisfied. So in this sense, with great respect, I commend it to you.
(c) Judge Abraham’s question
25. That brings me to Judge Abraham’s questi on: does it make a difference that Serbia was
Applicant in the NATO cases but Respondent here? Evidently it makes no difference under the
normal operation of jurisdictional requirements un der Article35, which apply reciprocally, in
accordance with their terms, both under paragraph 1 and paragraph 2. I should say that there was
great emphasis in the travaux of Article35, paragraph2, on the equal treatment of the Central
Powers; they were not just there to be respondents. Of course, in the Polish Upper Silesia case,
Germany was the Applicant. But it may well make a difference, at least in practice, in the situation
where the Mavrommatis principle is being relied on. There was never any possibility, as I have
said, for that principle to operate in the NATO cases, since there was no moment in time at which
all jurisdictional elements were combined. But a respondent which is subjected to proceedings that
it considers unfounded can always make it clear, at a very early stage, that it does not waive any
missing elements, as Spain and the UnitedStates made it clear in NATO at the provisional
measures stage, and as France made it clear in the Request for an Examination of the Situation. As
soon as this is clear, then on the first procedur ally-appropriate occasion, the Court may have to
have a hearing to find out whether it wa s clear: that is what happened in the New Zealand v.
France case. As soon as it is clear, the Court will act accordingly and dismiss the case, if necessary
ex officio. But if a respondent State ⎯whether through waiver, as with the United States in - 31 -
United States Nationals in Morocco , or by the making of a declaration under a Security Council
resolution ⎯ as, on the Respondent’s argument, must have been Turkey’s situation in the Lotus ⎯
or by the admission of the respondent State to the Statute or to the Charter ⎯ as here ⎯ then the
conditions for jurisdiction are united and the Resp ondent, which by definition will have brought
this new situation about, can no longer object. On the other hand, to commence proceedings is in
itself to waive any jurisdictional defects which it is within the power of the Applicant to waive. An
applicant cannot, so to speak, approbate and reprobate in respect of its own application ⎯ although
that does not seem to hinder the Respondent in this case ⎯ any more than a State can claim
immunity in relation to the very case it has itself commenced before a domestic court.
26. I did not hear Serbia respond yesterday to Judge Abraham. Croatia reserves the right to
comment on the Respondent’s eventual response within the time-limit laid down by the Court.
Preliminary objection 2: Responsibility before 27 April 1992
27. I turn to preliminary objection2. The Respondent’s argument here resembled nothing
more than a series of logical conundrums posed by a schoolmaster: I thought we might be strolling
in some cloister rather than standing in a courtr oom. And I fear that the Agent, Professor Varady,
has caught the disease of logicism from ProfessorZimmerman. I can well see how that can
happen: Professor Zimmerman has it very badly.
28. But in the spirit of the academy let me illu strate the problem with a hypothetical case.
Assume a State party to the Genocide Convention without reservation has an ethnically-mixed
province. A rebel movement in the province, of one ethnicity, seeks to secede and slaughters a
large number of the others in the province on the ground of their different ethnicity. The remainder
are forced to flee, and thus cleansed, the province declares its independence. But saner leadership
in the former rebel movement then prevails ⎯ it is now the government ⎯ and the government
announces the new State’s succession to the Genocide Convention without reservation. According
to ProfessorZimmerman, it is nonetheless logically impossible to hold the new State responsible
for the conduct of the movement. The movement could not be bound by the Genocide Convention
and the new State could not be bound before it cam e into formal existence. Instead of treaty - 32 -
succession creating continuity, this appr oach inevitably creates discontinuity ⎯ but after all, logic
dictates it, thus it must be so.
29. Madam President, Members of the Court, this is the jurisprudence of forms, divorced
from reality.
30. But Professor Varady did address Article 10 of the ILC Articles, logically impossible as
to treaties, however it may be according to Pr ofessorZimmermann. And citing Rosenne he did
concede that responsibility for breach of treaty could be attributed to a State for events prior to its
declaration of independence, though with due caution ⎯ Rosenne is a cautious author. He might
equally have cited the less cautious Professor Brownl ie to that effect. I quoted Professor Brownlie
on Wednesday, but Yugoslavia seemed une nthusiastic about this authority ⎯ at any rate, he was
not mentioned yesterday! Nor was the Eritrea-Ethiopia Compensation Commission decision on
pre-referendum Eritrean nationality cited. Professo rZimmermann did not tell us how its decision
was to be squared with his imperative categories.
31. But as soon as one makes that concession ⎯ whether with Rosenne or with Brownlie and
with however many cautionary notes ⎯ as soon as one accepts that there can be attribution for
pre-independence acts ⎯ then we are outside the realm of admissibility altogether and into the
merits: the question then becomes essentially one of fact and appreciation. And the Court will
have noted that following his citation of Rosenne, the Agent did not merely paddle on the edges of
the sea of the facts; he dived in fully clothed, swimming off furiously. I am afraid that despite
your injunction, Madam President, I need to follow him just a little, just to see if he is still afloat.
32. ProfessorVarady asserted that there wa s no movement in Belgrade which sought the
creation of an independent Serbian State. He claimed that a movement to create the Federal
Republic of Yugoslavia did not exist at all. A pparently the FRY was a spontaneous creation on
27 April 1992, created ex nihilo after everyone else in the SFRY had unaccountably left the room
and abandoned the party. But, of course, there is plenty of evidence on the existence of a Serbian
national movement oriented on the creation of a Greater Serbia ⎯ a matter which we merely ask
you at this stage to note, since adjudication on the facts would be premature. - 33 -
33. Let me take, by way of example, one Vojis lav Šešelj, talking to the paramilitaries in the
city of Benkovac, in the occupied part of Croa tia, on 23November1991. He said (it is in the
pleadings):
“ We cannot cross the Serbian borders w ith a Serbian army! Do you want the
Desert Storm here... I want a Serbian army when I get a Serbian state! Now we
want to set the borders. Diplomatically we are O.K. because we want Yugoslavia
without Slovenes and Croats. An army mixe d with politics is not good . . . We must
fight for Serbia that covers all Serb territories! We shall call such a Serbia Yugoslavia
as long as that is in our interest.” TPFPT
34. In March 1991, one Slobodan Milošević, acting as the President of Serbia, said:
“The Presidency of SFRY, which is also a Supreme Command of Armed Forces
of Yugoslavia, was a source of an organised obstruction of the work of JNA, which is
obliged and capable to protect the citi zens from the war, either civil or
conquering[...] I have ordered a mobili sation of reserve Republic of Serbia MUP
security forces and urgent establishment of a dditional police forces of the Republic of
Serbia. I asked the Government of the Republic of Serbia to carry out necessary
preparations for the establishment of th e additional forces in number that would
guarantee protection of interests of the Republic of Serbia and the Serbian people . . .
The citizens of Serbia should know that the Republic of Serbia is able to provide full
protection of the interests of the Republic, all its citizens and the Serbian people.” TPFPT
The PRESIDENT: Professor Crawford, I think you are in danger of going the wrong side of
a line.
Mr.CRAWFORD: I felt that myself, this is slightly rhetorical speech. Once you say
rhetorical . . .
The PRESIDENT: I think you’ve made the point that you differ on this since you’ve given
an example.
Mr. CRAWFORD:
35. According to ProfessorVarady this was not a movement. We should no doubt be
grateful that it was not: may we be preserved from such non-movements!
36. Of course in cases covered by Article10(2) of the ILC Articles ⎯ or by the principle
stated in different terms by Rosenne and Br ownlie, there will be a competing authority ⎯ or at
TPMC, 1 March 2001, Vol.5, App.2, pp.42-43. Transcri pt of a video clip of VojislavŠešelj’s address to
paramilitaries in Benkovac, occupied part of Croatia, 23 Nov. 1991. Filmed by paramilitaries themselves.
TPICTY, case IT-02-54-T, Exhibit P328, tab 29, entered through Stipe Mesic, 1 Oct. 2002. - 34 -
least will normally be ⎯ the Eritrea case was slightly exceptional in that regard. In such cases the
issue is reduced to one of factual control.
37. Further evidence on this point can be found in ICTY cases ⎯ to quote only one example,
the Revised Second Amended Indictment against Momcilo Perisic, dated 5 February 2008 TPPT
38. Professor Varady –– I have now regained, Madam President, dry land! Professor Varady
gave a novel interpretation to the words “succeeds in establishing a new State”. He seemed to
think it meant “succeeds in all its aims in the course of establishing a new State”.
Madam President, it falls to few of us to succeed in establishing all our aims in life, and this is true
(one might say a fortiori) of movements aimed at creating ne w States. The nationalist movement
ended up in creating the Federal Re public of Yugoslavia, consisting of Serbia and Montenegro; it
failed to get general recognition of its continuity with SFRY. Howe ver, the fact that the Serbian
national movement ended up with the old borders of Serbia and the new name of a State rather than
what it aspired to ⎯ different borders and the old name ⎯ does not change the fact that it did
establish that State and that that State ⎯ the respondent State ⎯ carries responsibility for
internationally wrongful acts committed in th e process which were attributable to it under
international law.
39. Finally ProfessorVarady asserted that the ILC did not have the sui generis case of the
FRY in mind when it drafted Article 10, paragraph 2. But the world of movements “insurrectional
or other” is full of variety, and paragraph 10 of the ILC Commentary states that: “This terminology
[insurrectional or other] reflects the existence of a greater variety of movements whose actions may
result in the formation of a new State.” The category of movements is not closed.
40. For these reasons the Applicant’s cl aim to responsibility under the Convention,
extending to the beginning of the conflict in Croatia is admissible. That is all you need to decide.
Preliminary objection 3: admissibility of claim 2 (a)
42. Madam President, Members of the Tribunal,
The PRESIDENT: Did I year you say “Members of the Tribunal”, Professor Crawford?
34
TIT-04-81-PT, 5 Feb. 2008, paras. 6-7. - 35 -
Mr. CRAWFORD: I am sorry, let me rephrase that. I was not referring to the Tribunal.
Madam President, Members of the Court, fina lly I should say a word about the admissibility
of claim2 (a) in Croatia’s submissions in its Memorial, which reads “to submit to trial before the
appropriate judicial authority” persons suspected on probable grounds of genocide. Serbia argues
that under Article VI it has no responsibility excep t in relation to persons who committed genocide
in Serbia. There are two simple answers to this . First, persons found in Serbia suspected of
committing genocide in Croatia can still be submitted to trial before the ICTY ⎯ which is a
tribunal ⎯, and Serbia would on that hypothesis still ha ve obligations to fulfil. Secondly, the
phrase “the act was committed” in ArticleVI refe rs, we submit, to the act charged against the
defendant in question, not to the global act of genocide, but to the act charged against the
defendant. Otherwise, the determination of venu e for genocide will be extraordinarily difficult.
When crimes are committed in a trans-boundary context is a complex matter, highly facts
dependent. For these reasons, Croatia’s first claim to relief is not inadmissible. How it fares on the
merits will depend on the facts.
Madam President, Members of the Court, thank you again for your attention. I would ask
you, Madam President, to call the Agent for Croatia to conclude our response and to present our
submissions.
The PRESIDENT: Thank you, Professor Crawford. And now we do call Dr. Šimonović.
ŠMIr.ONOVI Ć:
CLOSING REMARKS
1. Madam President, Members of the Court, thank you very much for your patience during
the course of this week with this challenging case. In my closing remarks, I will try to be short and
to the point.
2. I believe that during these two rounds Croa tia as the Applicant managed to cover all
relevant issues and answer all questions raised, either by the Court, or by the Respondent. We have
proved that the Genocide Convention was in force at all times, that bot h the Applicant and the
Respondent had access to the Court and that the Applicant’s submissions are based on facts and - 36 -
law, in particular the Genocide Convention, and ar e, thus, admissible. I would just like to add a
couple of clarifications.
Lack of ICTY genocide charges
3. Although the Respondent admitted that numerous war crimes have been committed during
the conflict in Croatia, it questioned whether a ny of them amounted to genocide. Its crucial
argument in this respect was that the ICTY di d not bring charges against any individual for
genocide committed in Croatia.
4. First of all, this issue belongs to th e merits. It is very difficult to address it,
Madam President, while obeying the Court’s instruc tions regarding this hearing. But I will do my
best.
5. The ICTY is a subsidiary organ of the United Nations with the task of prosecuting war
crimes, crimes against humanity and genocide committed during the conflict in the former
Yugoslavia. Because of capacity constraints, face d with piles of evidence on war crimes, it had to
use prosecutorial discretion to decide for whic h individual crimes committed in the former
Yugoslavia to raise charges. We would not like to second guess the reasons for which the
prosecution has not raised any charges against higher Serbian military officials for crimes
committed in Croatia, which could have involv ed genocide. For some of them, such as
Ratko Mladić, who committed crimes in both Croatia a nd Bosnia and Herzegovina, genocidal
charges have been raised only for the latter. No matter what the reasons, I would like to remind
you of the following facts.
6. It was in the Bosnia v. Serbia Judgment that this Court, Madam President, as the principal
judicial body in charge of establishing State res ponsibility, and one of the main organs of the
United Nations concluded that
“State responsibility can arise under the Convention for genocide and complicity,
without an individual being convicted of the crime or an associated one” ( Application
of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 27 February 2007,
para. 182).
Deciding this, the Court was obviously aware of the constraints of the ICTY and of its own role. - 37 -
7. Croatia raised genocide charges agains t a number of persons for genocidal acts ⎯
mentioned in our Memorial ⎯ with full names of victims, witnesses, as well as their
perpetrators ⎯ most of whom are now presumably in Serbia.
8. Other organs of the United Nations e xplicitly expressed concerns related to the
qualification of war crimes committed in Croatia and Bosnia and Herzegovina from the perspective
of the Genocide Convention.
⎯ At its Second Special Session in 1992, the United Nations Commission on Human Rights in
operative paragraph 12 of its resolution:
“Calls upon all states to consider the extent to which the acts committed in
Bosnia and Herzegovina a nd Croatia constitute genocide, in accordance with the
Convention on the prevention and Punishment of the Crime of genocide.” TPFPT
⎯ The General Assembly repeated the same call in operative paragraph 16 of its resolution on the
36
situation of human rights in the territory of the former Yugoslavia adopted the same year TPPT
Madam President, Members of the Court, the Republic of Croatia feels obliged to answer
this call. In our view, the Court of Justice, as one of the main United Nations organs, is the right
place for these issues to be addressed.
NATO cases social framework
9. MadamPresident, Members of the Court, during the first and the second round of our
presentation, we have clearly shown that the C ourt’s reasoning regarding its jurisdiction in the
genocide cases followed a coherent and consistent lin e of reasoning, with a single exception: it is
the Judgment of the Court in the NATO cases.
10. First of all, the NATO cases were unusual. Or, rather, the behaviour of the Applicant in
these case was extremely unusual. From the outset, it was clear that the FRY did not have a case
against the NATO States. Although fully aware of their legal futility, Miloševi ć’s régime started
the proceedings. The ambition was not to win them, but rather to:
⎯ use them for propaganda purposes, and
TPSecond Special Session of the Commission on Human Rights on the situation of human rights in the territory of
the former Yugoslavia, 30 Nov. and 1 Dec. 1992.
36
TPGeneral Assembly resolution A/RES/47/147 of 26 April 1993 on the situation of human rights in the territory of
the former Yugoslavia, adopted on 18 Dec. 1992. - 38 -
⎯ harm proceedings in the genocide cases brought against the FRY by Bosnia and Herzegovina
and Croatia.
11. Aware of various weaknesses of the case, including those regarding jurisdiction, the
Applicant did not invest the usual effort to estab lish jurisdiction. The Applicant, in fact, did
exactly the opposite: it raised objections to the Court’s jurisdiction itself.
12. The Application of the FRY in the NATO cases could indeed be considered a gross
attempt to abuse the Genocide Convention. The fact that the FRY as the Applicant itself raised the
issue of the Court’s jurisdiction in those cases is indicative of the absurd situation: no applicant
State has ever before made a jurisdictional objection to its own application.
13. Yesterday the Respondent insisted that Article 35 (2) has been argued in the NATO cases.
I would like to remind the Court that in the NATO cases the issue was argued solely by some of the
Respondents, and not Serbia, as the Applicant. The arguments on Article35(2) presented by
Professor Crawford, therefore, appear for the first time from the Applicant’s perspective. The same
applies to the Mavrommatis principle, although that was discussed by at least one Member of the
Court in your 2007 decision.
14. When comparing the decisions on lack of jurisdiction in the NATO cases and the
possibility of establishing jurisdiction in the Croa tian case, the Respondent suggested that Serbia
would be given different answers to the question of jurisdiction. Firstly, for reasons elaborated by
Professor Crawford, from a legal point of view, the situations are not the same. Secondly, because
of its own behaviour, Serbia deserves these two different answers.
15. The answer to the honourable Judge Abraham’s question: what is the difference between
Serbia and Montenegro as Applicant in the NATO cases, and Serbia as Respondent in this case,
with respect to access to the Court in the sense of Article35 of the Statute ⎯ should follow the
same line of reasoning. Professor Crawford elaborated on the legal differences. I would like to put
those legal differences into their social context.
16. In the NATO cases, Serbia and Montenegro was an applicant who did not behave like an
applicant. When arguing jurisdiction, it behaved like a respondent. In those cases, there were only
respondents: there was no real applicant at all. The difference is that in this case, Croatia is a real
Applicant. - 39 -
17. Madam President, Members of the Court, the border between the desired respect for legal
form and undesired legal formalism is sometimes a small one. Adopting the Mavrommatis
principle is a good way of solving this dilemma. This principle has not been invoked by Serbia and
Montenegro as the Applicant in the NATO cases, and probably with good reason. But this does not
mean that it should not be implemented when in voked by the Applicant in this case. Serious
genocide cases should be decided in the merits phase, if possible.
Mootness of submissions
18. I believe that already during the first round we have proved that our submissions are
neither inadmissible, nor moot. Professor Crawfo rd addressed inadmissibility while I dealt with
mootness. Unlike Monday, yesterday we heard very little about the alleged mootness of our
submissions. I would like to conclude that argument by indi cating that this case has already
positively affected individual requests containe d in our submissions; proceedings against
perpetrators, tracing missing persons and the return of cultural property. Pressure stemming from
the genocide charges helps to achieve some results. However, there is still a long way to go before
Croatia can be satisfied.
19. This should not be the reason to terminate these proceedings, but just to the contrary. It
proves how important it is to continue this cas e in order to fulfil requests contained in our
submissions.
20. For Croatia, it is of utmost importance that the requests contained in our submissions are
fulfilled: the sooner, the better. We wish they become moot as soon as possible. But until they do,
this case has a continuing and important role.
Reflections of this case on others
21. In these proceedings, protecting its own in terests, Croatia also protects some broader
interests and general principles.
⎯ A negative decision on jurisdiction in the Croatian case would surely have adverse
consequences for the Bosnia case, the first Judgment in history establishing the responsibility
of a State for the crime of genocide. If there is no jurisdiction for Croatia, then not only your - 40 -
Orders and decisions on jurisdiction of 1993 an d 1996 will be treated by many as wrong, but
the Judgment in merits of 2007, as well.
⎯ Serbia has not yet confronted its responsibilit y for sufferings in Croatia from 1991 to 1995.
The establishment of truth and responsibility for past events, including State responsibility, is
vital for sustainable peace, stability and co-ope ration in south-east Europe and its European
future.
⎯ By insisting on a broad coverage by the Ge nocide Convention, and other humanitarian and
human rights instruments, with no gaps in its application, Croatia seeks to promote the interests
of civilians in turmoil and conflict, characteristic of processes of dissolution and the emergence
of new States.
22. Madam President, Members of the Court, th ank you for your attention. This concludes
the second round of Croatia’s oral pleadings. With your permission, I will now read Croatia’s final
submissions.
Submissions
23. On the basis of the facts and legal argum ents presented in our Written Observations, and
as presented during these oral pleadings, the Re public of Croatia respectfully requests the
International Court of Justice to:
(a) reject the first, second and third preliminary objections of Serbia, with the exception of that part
of the second preliminary objection which relates to the claim concerning the submission to
trial of Mr. Slobodan Milošević, and accordingly to
(b) adjudge and declare that it has jurisdiction to adjudicate upon the Application filed by the
Republic of Croatia on 2 July 1999.
Thank you, Madam President.
The PRESIDENT: Thank you, Dr. Šimonovi ć. The Court takes note of the final
submissions which you have just read on behalf of Croatia.
That brings us to the end of the hearings on the preliminary objections raised by Serbia. I
should like to thank the Agents, counsel and a dvocates for their statements. In accordance with
practice, I request that both Ag ents remain at the Court’s dis posal to provide any additional - 41 -
information it may require: and with this proviso I now declare closed the oral proceedings in the
case concerning Application of the Convention on the Preven tion and Punishment of the Crime of
Genocide (Croatia v. Serbia). The Court will now retire for deliberation. The Agents of the
Parties will be advised in due course of the date on which the Court will deliver its judgment.
The Court having no other business before it today, I now declare the sitting closed.
The Court rose at 11.40 a.m.
___________
Audience publique tenue le vendredi 30 mai 2008, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président, en l'affaire relative à l'Application de la convention pour la prévention et la répression du crime de génocide (Croatie c. Serbie)